- (1.) AN application has been moved for staying the conviction of the applicant-appellant awarded vide judgment dated 06.1.2010 passed by learned Additional Sessions Judge (Fast Track) No.2, Bikaner, whereby the learned Judge has sentenced the accused-applicant-appellant for three years' simple imprisonment for the offence under section 363 IPC and a fine of Rs.5000/-, in default of payment of fine, further to undergo six months' simple imprisonment.
(2.) LEARNED counsel for the accused-applicant-appellant has contended that the applicant-Azhaz Ali is working as a Ticket Collector in the Railways Department. He further contended that because of conviction recorded against him by the trial court, his service is likely to be terminated and not only he but most importantly his family members would suffer economic hardship. Therefore, conviction may be suspended so that his service may not be affected in any manner. It is further contended by the learned counsel for the applicant-appellant that even in corruption cases, appellate court, in a suitable case, may stay the operation of the order of the conviction. It is also contended that order of conviction can also be stayed even after an order of removal from service is passed by the department concerned. In support of his contention, the learned counsel for the applicant-appellant has relied upon the cases of Jagdish Kishore vs. State of Rajasthan (WLN (UC) 1982 14); Dr. Trilochan Singh vs. State of Rajasthan (1993 RLR 77); Om Prakash vs. RSRTC, Jaipur,(1983 RLW 77); Jamaluddin vs. State of Rajasthan (1983 RLR 407); Praveen Kumar Paras Kumar Gokhroo vs. State of Gujarat and Ors. (2010 (2) Crimes 265 (Guj.)); Laxman Lal and Ors. vs. State of Rajasthan & Ors., (2006 (1) RLW 121) and Kanhaiya Lal vs. State of Rajasthan (2001(3) WLC (Raj.) 412), wherein a Division Bench of this has suspended the life sentence of the appellant on the ground that a notice of termination was served upon and relying upon the case of Laxman Lal & Anr. vs. State of Rajasthan & Anr. (2004 (1) RCC 27; Hari Narain vs. State of Rajasthan & Anr. 2005 (2) RCC 691; Suresh Kumar vs. State of Rajasthan (2006 (2) RCC 1009; Shivlal vs. State of Rajasthan (2007 (3) RCC 1039) and Mahendra Pal Singh vs. State of Rajasthan (2007 (1) RCC 365), the learned counsel for the applicant-appellant has vehemently contented that the conviction should be stayed so that right of the applicant-appellant to livelihood can be protected. On the other hand, learned Public Prosecutor has opposed the staying of conviction and submitted that Service Rules have been framed purposely so that normally convict may not and should not continue in the service and, therefore, when legislature itself has framed Rules for taking action against convict persons, then normally there is no reason for not allowing the Government to take action permissible by the Service Rules. He has submitted that it is necessary that public post must be occupied by a clean person. If conviction is stayed, a tinted, rather a convict may continue in job during the period of appeal, which according to the applicant-appellant himself may remain pending for several years and even for decades. Having considered the submissions made by the learned counsel for respective parties and having gone through the material made available to me and also the relevant case law cited by the learned counsel for applicant-appellant, in my opinion, suspending the conviction does not amount to an acquittal of the accused. It merely amounts to eclipsing the conviction during the pendency of the appeal. Considering the fact that the service of the applicant is likely to be terminated on account of conviction recorded under section 363 IPC, considering the principles laid down in the above mentioned cases, it is directed that the conviction of the applicant- appellant-Azhaz Ali son of Barkat Ali for the offence under section 363 IPC shall remain suspended during the pendency of this appeal. Consequently, the application filed by the applicant- appellant under section 389 CrPC is hereby allowed. ;